"Hate crime" prosecution for flushing Koran down a toilet

Richard D. Friedman rdfrdman at umich.edu
Sun Jul 29 10:15:50 PDT 2007


Maybe this is a dead horse, but doesn't speaking 
of "bias against all who adhere to Islam" simply 
restate the problem?  If it were the Communist 
Manifesto in the toilet, would we speak of "bias 
against all who adhere to Communism"?  Perhaps 
the facts that the Koran is a religious text and 
that those who adhere to it are a religious group change the matter, but I
m not sure.

Rich Friedman
University of Michigan

  At 01:31 AM 7/29/2007, Rosenthal, Lawrence wrote:
>Does the First Amendment permit the government 
>to treat the Marines who, at least on some 
>accounts, may have maliciously desecrated a 
>Koran as part of an interrogation technique more 
>harshly than Marines who, say, maliciously 
>damaged a cookbook during an interrogation?  I 
>think it does -- because of the special dangers 
>that Mitchell tells us are posed by 
>bias-motivated crimes.  Those dangers are surely 
>present when the bias is reflected in the manner 
>by which the defendant chose his victim, but 
>they are present as well whenever the 
>defendant's acts reflect bias against an entire 
>class of people -- and in this case the 
>defendant's acts reflect his bias against all who adhere to Islam.
>
>Larry Rosenthal
>Chapman University School of Law
>
>
>________________________________
>
>From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
>Sent: Sat 7/28/2007 9:02 PM
>To: CONLAWPROF at lists.ucla.edu
>Subject: RE: "Hate crime" prosecution for flushing Koran down a toilet
>
>
>
>         (1)  Just to be clear, my sense is that 
> the property of another was the toilet, not the 
> Koran; Shmulevich risked damaging the 
> university's toilet by flushing down his own Koran.
>
>         (2)  Mitchell rested in part on the 
> theory that "motive plays the same role under 
> the Wisconsin statute as it does under federal 
> and state antidiscrimination laws, which we 
> have previously upheld against constitutional 
> challenge."  Here, Shmulevich isn't having his 
> punishment being increased because of how he 
> chose his victims.  He's having it increased 
> solely because of the content of the book that 
> he was flushing down, and because of the 
> blasphemous message that he was sending through 
> destroying that particular book that he 
> owned.  (Presumably he would have sent the same 
> message if he'd ripped off several pages and 
> flushed them down, something that wouldn't have 
> damaged the university's property.)
>
>         (3)  So the motive here isn't 
> "discriminatory" in the sense of being a motive 
> to treat someone differently because of his 
> race, religion, sex, etc.  Rather, it's simply 
> the motive to express hostility to a particular 
> ideology (a religious one).  Does Mitchell 
> allow the government to enhance punishment for 
> nonspeech crimes when they send a message of 
> hostility to a particular ideology, religion, 
> or ethnicity?  May the government indeed punish 
> illegal burning much more severely if it 
> involves the burning of an American flag 
> (which, to many, conveys a message of hostility 
> to America or at least to dominant American 
> beliefs and practices)?  May the government 
> punish, say, deposit of feces or urine in a 
> public place if it involves someone's creating 
> a display of a crucifix covered with urine, or 
> the Virgin Mary covered with feces?  Or may it 
> do so only if it can show that it creates some 
> "special dangers" (say, danger of greater 
> religious tension, as with the crucifix, or 
> danger of violent retaliation, as with the 
> burning flag, or danger of greater hostility 
> between Left and Right, if the flagburning is 
> part of a pattern that sows such hostility)?  I 
> realize that Mitchell allows some enhancement 
> based on motive -- but does it really allow the 
> government to impose greater punishment in all 
> these cases, because the motive is to express offensive and hostile ideas?
>
>         Eugene
>
> > -----Original Message-----
> > From: Rosenthal, Lawrence [mailto:rosentha at chapman.edu]
> > Sent: Saturday, July 28, 2007 8:25 PM
> > To: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
> > Subject: RE: "Hate crime" prosecution for flushing Koran down a toilet
> >
> >
> > I am afraid that I do not grasp why Wisconsin v. Mitchell is
> > not a sufficient answer to a First Amendment objection.
> >
> >
> > Mr. Smulevich violated a perfectly constitutional criminal
> > law by damaging the property of another.  Mitchell holds that
> > when one engages in such unprotected conduct, the First
> > Amendment permits enhanced punishment based on a
> > discriminatory motive such as religious animus.  That is
> > because bias-motivated crime is thought to pose special
> > dangers and therefore the legislature can properly determine
> > that it warrants an extra measure of deterrence:
> >
> >
> >
> >               Mitchell argues that the Wisconsin
> > penalty-enhancement statute is invalid because it punishes
> > the defendant's discriminatory motive, or reason, for acting.
> > But motive plays the same role under the Wisconsin statute as
> > it does under federal and state antidiscrimination laws,
> > which we have previously upheld against constitutional
> > challenge. Title VII, of the Civil Rights Act of 1964, for
> > example, makes it unlawful for an employer to discriminate
> > against an employee "because of such individual's race,
> > color, religion, sex, or national origin." In Hishon, we
> > rejected the argument that Title VII infringed employers'
> > First Amendment rights. And more recently, in R.A.V. v. St.
> > Paul, we cited Title VII (as well as 18 U.S.C. 242 and 42
> > U.S.C. 1981 and 1982) as an example of a permissible
> > content-neutral regulation of conduct.
> >
> >
> >               Nothing in our decision last Term in R.A.V.
> > compels a different result here. That case involved a First
> > Amendment challenge to a municipal ordinance prohibiting the
> > use of "`fighting words' that insult, or provoke violence,
> > `on the basis of race, color, creed, religion or gender.'"
> > Because the ordinance only proscribed a class of "fighting
> > words" deemed particularly offensive by the city - i.e.,
> > those "that contain . . . messages of `bias-motivated'
> > hatred," we held that it violated the rule against
> > content-based discrimination.  But whereas the ordinance
> > struck down in R.A.V. was explicitly directed at expression,
> > the statute in this case is aimed at conduct unprotected by
> > the First Amendment.
> >
> >
> >               Moreover, the Wisconsin statute singles out for
> > enhancement bias-inspired conduct because this conduct is
> > thought to inflict greater individual and societal harm. For
> > example, according to the State and its amici, bias-motivated
> > crimes are more likely to provoke retaliatory crimes, inflict
> > distinct emotional harms on their victims, and incite
> > community unrest. The State's desire to redress these
> > perceived harms provides an adequate explanation for its
> > penalty-enhancement provision over and above mere
> > disagreement with offenders' beliefs or biases. As Blackstone
> > said long ago, "it is but reasonable that, among crimes of
> > different natures, those should be most severely punished
> > which are the most destructive of the public safety and happiness."
> >
> >
> >
> > 508 U.S. at 487-88 (citations omitted). This rationale
> > applies, it seems to me, even though the book belonged to the
> > University and not an individual victim. Malicious
> > destruction of a Koran surely poses special dangers even when
> > it belongs to a university rather than an individual victim.
> > And, as far as I can tell, the New York statute makes
> > enhancement turn on the defendant's motive rather than any
> > expressive component of the crime, which would be
> > impermissible under R.A.V.  One can question the integrity of
> > the Court's distinction between enhancement based on
> > unprotected expression and enhancement based on motive, but
> > that is the line the Court has chosen to draw.
> >
> >
> > Larry Rosenthal
> >
> >
> > Chapman University School of Law
> >
> >
> > ________________________________
> >
> > From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
> > Sent: Sat 7/28/2007 2:59 PM
> > To: CONLAWPROF at lists.ucla.edu
> > Subject: "Hate crime" prosecution for flushing Koran down a toilet
> >
> >
> >
> > http://www.newsday.com/news/local/wire/newyork/ny-bc-ny--vanda
> > lismquran0727jul27,0,6882662.story
> >
> > "A 23-year-old man was arrested Friday on hate-crime charges
> > after he threw a Quran in a toilet at Pace University on two
> > separate occasions, police said.
> >
> > "Stanislav Shmulevich of Brooklyn was arrested on charges of
> > criminal mischief and aggravated harassment, both hate
> > crimes, police said. It was unclear if he was a student at
> > the school. A message left at the Shmulevich home was not
> > immediately returned.
> >
> > "The Islamic holy book was found in a toilet at Pace's lower
> > Manhattan campus by a teacher on Oct. 13. A student
> > discovered another book in a toilet on Nov. 21, police said...."
> >
> >         Surely deliberately flushing any book -- or other
> > object that's likely to cause a clog -- down another's toilet
> > should indeed be a crime.  But the question is whether it can
> > be turned into a more serious crime (in New York, raised to
> > "one category higher than the specified offense the defendant
> > committed") because the book is a religion's holy work and
> > the act is thus intended to insult that religion.  I take it
> > that it would be unconstitutional to take a perfectly valid
> > sentence for burning objects in a fire danger area and
> > enhance it when the burnt object is a flag, or when the
> > intention of the burning is to offend or insult people
> > because of their country of citizenship.  Is this any different?
> >
> >         Note that, unlike in Wisconsin v. Mitchell,
> > Shmulevich isn't being prosecuted for selecting a victim
> > because of the victim's race, religion, and the like (which
> > would be the case under N.Y. Penal Law sec. 485.05(a)) -- the
> > victim is Pace University.  Rather, the relevant law (N.Y.
> > Penal Law sec. 485.05(b)) provides (emphasis added), "A
> > person commits a hate crime when he or she commits a
> > specified offense and .... intentionally commits the act or
> > acts constituting the offense in whole or in substantial part
> > because of a belief or perception regarding the race, color,
> > national origin, ancestry, gender, religion, religious
> > practice, age, disability or sexual orientation of *a
> > person*, regardless of whether the belief or perception is
> > correct."  That person need not be the victim of the crime
> > (again, that would be covered under sec. 485.05(b)).  Any
> > thoughts on this?
> >
> >         Relatedly, I don't see how "aggravated harassment"
> > would cover this conduct; I include the relevant statutory
> > provisions at the end of this message.  What am I missing?
> >
> >         Thanks,
> >
> >         Eugene
> >
> >
> >
> >
> >
> > § 240.30 Aggravated harassment in the second degree
> >
> >
> > A person is guilty of aggravated harassment in the second
> > degree when, with intent to harass, annoy, threaten or alarm
> > another person, he or she:
> >
> >
> > 1. Either (a) communicates with a person, anonymously or
> > otherwise, by telephone, or by telegraph, mail or any other
> > form of written communication, in a manner likely to cause
> > annoyance or alarm; or
> >
> >
> > (b) causes a communication to be initiated by mechanical or
> > electronic means or otherwise with a person, anonymously or
> > otherwise, by telephone, or by telegraph, mail or any other
> > form of written communication, in a manner likely to cause
> > annoyance or alarm; or
> >
> >
> > 2. Makes a telephone call, whether or not a conversation
> > ensues, with no purpose of legitimate communication; or
> >
> >
> > 3. Strikes, shoves, kicks, or otherwise subjects another
> > person to physical contact, or attempts or threatens to do
> > the same because of a belief or perception regarding such
> > person's race, color, national origin, ancestry, gender,
> > religion, religious practice, age, disability or sexual
> > orientation, regardless of whether the belief or perception
> > is correct; or
> >
> >
> > 4. Commits the crime of harassment in the first degree and
> > has previously been convicted of the crime of harassment in
> > the first degree as defined by section 240.25 of this article
> > within the preceding ten years.
> >
> >
> > Aggravated harassment in the second degree is a class A misdemeanor.
> >
> >
> > § 240.31. Aggravated harassment in the first degree
> >
> >
> > A person is guilty of aggravated harassment in the first
> > degree when with intent to harass, annoy, threaten or alarm
> > another person, because of a belief or perception regarding
> > such person's race, color, national origin, ancestry, gender,
> > religion, religious practice, age, disability or sexual
> > orientation, regardless of whether the belief or perception
> > is correct, he or she:
> >
> >
> > 1. Damages premises primarily used for religious purposes, or
> > acquired pursuant to section six of the religious corporation
> > law and maintained for purposes of religious instruction, and
> > the damage to the premises exceeds fifty dollars; or
> >
> >
> > 2. Commits the crime of aggravated harassment in the second
> > degree in the manner proscribed by the provisions of
> > subdivision three of section 240.30 of this article and has
> > been previously convicted of the crime of aggravated
> > harassment in the second degree for the commission of conduct
> > proscribed by the provisions of subdivision three of section
> > 240.30 or he or she has been previously convicted of the
> > crime of aggravated harassment in the first degree within the
> > preceding ten years; or
> >
> >
> > 3. Etches, paints, draws upon or otherwise places a swastika,
> > commonly exhibited as the emblem of Nazi Germany, on any
> > building or other real property, public or private, owned by
> > any person, firm or corporation or any public agency or
> > instrumentality, without express permission of the owner or
> > operator of such building or real property; or
> >
> >
> > 4. Sets on fire a cross in public view.
> >
> >
> > Aggravated harassment in the first degree is a class E felony.
> > _______________________________________________
> > To post, send message to Conlawprof at lists.ucla.edu To
> > subscribe, unsubscribe, change options, or get password, see
> > http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> >
> > Please note that messages sent to this large list cannot be
> > viewed as private.  Anyone can subscribe to the list and read
> > messages that are posted; people can read the Web archives;
> > and list members can (rightly or wrongly) forward the
> > messages to others.
> >
> >
> >
>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu
>To subscribe, unsubscribe, change options, or 
>get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
>Please note that messages sent to this large 
>list cannot be viewed as private.  Anyone can 
>subscribe to the list and read messages that are 
>posted; people can read the Web archives; and 
>list members can (rightly or wrongly) forward the messages to others.
>
>
>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu
>To subscribe, unsubscribe, change options, or 
>get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
>Please note that messages sent to this large 
>list cannot be viewed as private.  Anyone can 
>subscribe to the list and read messages that are 
>posted; people can read the Web archives; and 
>list members can (rightly or wrongly) forward the messages to others.



More information about the Conlawprof mailing list